tv Key Capitol Hill Hearings CSPAN June 8, 2015 9:00pm-11:01pm EDT
agriculture. will you explain how these tensions will be dealt with in arizona, where we're trying to allow growing urban economy, but still maintain healthy agricultural economy? >> there are some tens in arizona between our senior priority users for the colorado river in the yuma, arizona area, in the cities in central arizona, who take central arizona project water, we've been working with the central arizona project and the yuma
area ago feweral interests, in trying to come up with a way to do things that create surplus, to try to prop up the levels of lake meade. i think those things have been going fairly well, we don't have a deal on the table yet. our agricultural users suffer the brunt of the shortage, if there's a tier 1 shortage in 2016 or 2017, they'll lose about half of their colorado river supplies. they have options to pump groundwater under state law. under our underground storage and recovery program, they have options to partner with arizona tribes and arizona municipal users who have higher arizona water.
they can partner with those entities, take their colorado river water and they will get a future credit to pump groundwater from under the agricultural land. the department of water resources has looked at the permitting that goes along with that program to make those more probable as we approach the shortage in 2016 or 2017. >> you talk about augmentation for areas, what are the most promising areas to augment the resources that we have? >> i think the lower basin help funding weather modification to try to increase the flows there. we also are looking at potential desalination of brackish groundwater within our state. of course, we're participating through the auspices of the treaty implementation with mexico. to look at potential national desalination with mexico, and also, potentially partnering
with california for desalination with california and arizona. those are probably the main sources. >> thank you, thank you madam chair. >> deputy secretary conner. in its colorado river basin study, the bureau of reclamation identified efficiency and conservation projects as some of the most cost effective approaches to increasing viable water supplies for users, in other words, actual wet delivered water, the state is elected to pursue a new diversion project on the gila river instead of focusing on efficiency projects that would help stretch existing water supplies further i wonder how will the lessons learn from the basin study, factor into the costs and benefits that could be pursued under the settlement act. >> i think in looking at --
obviously when we do our studies, one of the areas we look at are alternatives approaches and as you've pointed out i think that will be something that does get scrutiny, as to what are the water supply demands -- and what are the options available to meet that demand. i think overall through our history in my prior capacity, i had the opportunity to spend a lot of time up here testifying on water resources issues. what are the relative -- back of the envelope calculations for the different types of projects
we have. there were a couple large scale storage projects, that i mentioned one was the black rock reservoir proposal. the cost per acre foot versus yield were somewhere in the neighborhood of 17,000 to $46,000 per acre foot. you look at the water smart conservation proposals we've gotten, water conservation is not going to create a new supply for a new demand, it certainly can lead to saving water, be able to put that in storage. those are down 500 to $800 per acre foot. great drought resistance aspects to them, they're -- you know, they provide water in times of plenty as well as times of shortage, there are about 8,000, 400, $500 per acre foot. we've made investments, i think the water conservation projects in the yakima river basin are something around $2500 per acre foot, and we did a major infrastructure project in california between two canals which resulted in 40,000 acre
foot on average, that was $850 per acre foot. cheapest water in the west. we're making improvements that i think are adding to the bottom line availability, every project needs to be evaluated on its own merits, it shows you the range and the differences, quite frankly, what we've found is we have a lot of demand for the conservation and reuse programs, i think water managers. this is not a federal driven program, we have the availability where we can participate, but we're getting applications on a yearly basis that greatly exceed the viable resources because water managers view that as the best investment. in a lot of cases, much better than large storage. >> thank you. i appreciate your focus on
looking quite trans parentally at the cost per acre foot, the yield i think that's incredibly important. i want to move to you real quickly. the bureau of reclamation has leased water to maintain flows in the rio grande necessary to support wildlife populations, many have suggested expanding that program on a voluntary basis. can you tell us how water leasing has been used in other states to meet water needs. what new mexico should keep in mind manneding the toolbox in the rio grande. >> the other areas this has been done, where the department of ecology has worked with water left in streams by having people voluntarily agree to use that
water, i don't know honestly, if the state is paying for that that would be a question for my colleague over here california is a place where people have entered into long term contracts with municipal areas to move water on a voluntary basis. usually those are structured as a contract reclamation for transfer of water. the options are out there others have proposed to do similar things in the west that could include new mexico. >> thank you. >> mr. conner, nice to see you again thank you for being here you're aware of my legislation to pass 593. a report that would be available
to the public and updated every two years you've been very helpful in working with my office to move this legislation. the last congress, you commit once again to continue to work with me to move this legislation so we can understand what the total backlog is? >> that's a very valuable bill. >> you know, folks across the west, they need water to grow alfalfa, cattle they worry about getting the water they need. the sent imt is, whiskey is for drinking, water is for fighting over the state of wyoming through our gov negs's office is to increase water storage. i've introduced legislation s-1305, to provide more water
for southwest wyoming, we're looking at options to expand our reservoirs, will you continue to work with me, with water storage project. what steps are you taking to address this need across the west for more water storage? >> to the wyoming specific examples that you reference, senator, we will be happy to keep working. we've had activity on the font nell reservoir. the issue, i think we want to work through the technical aspects in particular, it's demonstrating where we see there is value and economic viability, seeing how we might increase,
absolutely committed to working with your office. overall, we have number of storage proposals that we are continuing to do work on. particularly in california they required us to look at four major storage opportunities in california. one of those is a facility in the bay delta itself, went through a phase that increased water storage by 60,000 acre feet, looking at a second acre phase. we've completed some, we're in the process of completing others, we are looking at increasing storage in the st. louis reservoir, south of the delta in california. that that might have a great opportunity to provide additional water supply, as i mentioned earlier, we've looked
at some smaller regulating reservoirs, one of the most successful aspects of that is the brock reservoir in the lower colorado river, we have 60 acre feet in the colorado river. there's great value in the regulating reservoir, that's yielding about yielding about 60 to 70 million acre feed. we provided technical assistance and once again, that proved to be great value as to the dollars per acre foot added there's projects id nighs, we want to look at storage, and we certainly believe that's one of the tools we need to address our water storage. >> i know the wyoming water commission is working on a large study. you're familiar with that. we look at congress. will your bureau have the authority to integrate a dam
safety? >> i think we will look at that under our existing safety of dams legislation i do think it warrants we should look at the opportunities to increase storage. there's an authority issue there, and we'll need to work through cost share issues at that point. >> in your testimony, you mentioned the drought is not just in california, but many states as well. i believe any drought relief bill shouldn't just address california's crisis, it should be a westwide -- i'm wondering what you're hearing from western governors that you represent.
>> chairwoman mer cow ski, the governors have been phenomenally engaged in the western governor's drought forum. the invention of our current chairman of nevada. we've gone across the west, senator, governor martinez of new mexico, hosted a workshop on droughts impacts on tourism and recreation. governor brown of california hosted a workshop on agriculture. mr. conner participated with us in los angeles. governor sandoval focused on droughts. this is a regional issue, and it demands a regional collaborative solution. >> thank you. >> thank you for holding this
hearing. they're experiencing record snow pack, warmest temperatures on record, and these drought conditions are having tremendous impacts on our communities in our economy. we've heard the cooperation between states and western states and federal government. and different entities to address these impacts. to make matters worse, many models are protecting the west is likely to get dryer and hot er now more than ever, i believe
that the federal government should take the lead in supporting research on how climate change will exacerbate drought conditions like the ones we've been talking about today. what does the department of interior do to better understand the impacts of these climate related events, and how is that informing our understanding of what we're going to do going-forward. >> we have a number of different areas by which we are participating, particularly in the area of better understanding the impact of water resources, and the right strategies to deal with those implications. and we've participated, our u.s. geological survey, participates
with the global change program that help put together the national climate assessment, certainly within the department itself we have had a focus on putting together more transparent water data. there's a lot of smart people outside the department. and we have an initiative to try to standardize data enough so we can put it out and make it accessible. because we think others can help us use that data to better understand how it will occur to date. we have a basic studies program, we are looking at opportunities to assess supply, demand imbalances over a 50 year period. and down scale models to assess how the supply is changing. >> as we go forward, since we're projecting dryer, hotter weather going-forward because of climate change, is that going to make
certain technologies suddenly economic where they weren't before. i heard about desalonization of bracish waters. san diego has a desalonization project that will deliver 7% of the counties needs. going-forward, things like, i know you mentioned the u.s. geological survey, i know that in the aqueducts go through a lot of arid areas. the u.s. geological study covering very low precipitation areas so you don't lose the evaporation. are we going to see certain approaches become economical, start to make sense are we going to start seeing those things become economical? and anyone can weigh-in. >> we're leasing water, ten
years ago, we paid $137 an acre foot, this year it's about $275. this is a reverse option, where we solicit bids from water right holders, costs have doubled and with more frequent droughts, what does that mean for the cost of water, what does it mean for the cost of leasing, for example, one of the proposals is to have a pumping system set up. there's 200 acre feet of dead storage, if you could pump that water, it's an enormous win for agriculture. it could be as water is more scarce, the projects like that
make more economic sense. thank you. >> any other comment? >> look for desalination of water the cost is about $1,000 per acre foot. it's about $1500 to $2100 an acre foot. you compare that with cities that treat and deliver poetable water at a cost of 1200 to $1600 better acre foot, it's becoming more economical, becoming more in the range of what we're seeing now for the costs of water. >> thank you. i know someone mentioned israel
before. great agricultural sector, and they're exploring desalonization, as we go into the future, there are certain technologies that are going to become economic. >> i'm happy to allow senator cane. >> just really, one major question, and i'm not sure who wants to tackle this. i'm interested in the historic data of water in the west.
are we facing a new crisis, or are we seeing a return to a normal situation over the last thousand years or 10,000 years, and i think that's an important question. that will inform our re1307bs. does anybody have any response to that question now or is this something that we have to look at. >> i do have a question thought, but i think it deserves a little more elaboration. that's the -- >> that's the blink of an eye. >> a blink of the eye, but i wanted to give -- the example i wanted to give. the last drought in the colorado river basin, the in stream flows, the runoff within that system is the lowest on record over that period of drought. but through tree ring data there's been some research that it's in the lowest first percentile of the last 1200
years there are new heck nicks to look at the estimates of what the runoff within that basin has been, and we're at the lowest levels of that data. we may have similar basins we can compare to find out where we're at and how significant is this drought, the drought is cyclical. >> any further information, i think that's important to inform our -- how we respond to this pip i was in california in area i was shocked to see the reservoirs when they should have been full. i was told the snow pack was at 6% of normal, and i thought they said 60%, it was 94% down, which is just stunning. it seems to me that one of the things, you all have mentioned this, at various points in our testimony, i really need to talk about conservation and efficiency measures, not necessarily conservation don't
use, but used more efficiencily, low flow toilets, drip irrigation, probably the lowest cost, i think you testified to this, that of all the alternatives those tend to be the lowest cost per acre foot as opposed to reservoirs, desalonization -- >> it's one of the most efficient ways. the low hanging fruit. the plumbing that they use one area, our water smart program, we've invested something like $460 million of federal money, and we yielded about 860,000 acre feet of water that we view as conserved or contributed as new supply. that we've helped facilitate that braham. one of the ongoing. i just looked at the 50 plus projects that we just announced a couple weeks ago, turf removal programs for a lot of municipalities are very highly
leveraged in their water savings, among municipalities across the west, we're still giving out grants along those lines. >> one question about energy efficiency. it's a similar issue of water efficiency is price signals, what will be the incentive for the efficiency if someone's going to put in a low flow toilet, do they -- is there a price signal on the water that will make that a justifiable expense? in other words, are they doing it just to be good citizens, or are they saving themselves money? i think this could be something that we can discuss further. but that's important, are we talking about incremental price increases if you use above a certain amount, or regulatory requirements that new insulations have to be more water efficient. it seems to me that's an
important discussion, because if water's the same price, whether we're in a terrible drought or in a surplus situation, then there's no incentive for people to do that kind of efficiency. mr. michael, talk to me about your farm and the incentives for water efficiency. >> california, because of the regulatory climate, we use every resource as carefully as we can. we have an incentive based on our cost of production to use things as carefully as possible. we installed the drip irrigation on over 60% of our farm we have very successful partnerships on our bureau. we have a long history working with the bureau, i think it's important as you mentioned, not only to look at the large projects, but to find ways to incentivize local efforts to help that along. streamlining some of the environmental requirements, if you were going to have some participation by the private sector and storage projects, i think there's ways to encourage participation. we are very proactive in terms of using our water resources. >> thank you. >> thank you, senator king.
one of the -- as we talk about infrastructure and updating things around this country, one of those areas that we forget, we want to talk about efficiency or conservation, is old water systems that just leak. how much water we lose just because of aging infrastructure. >> thank you, madam chair, thank you for holding this hearing today. it's timely, we in the west are talking about drought issues that may have spurred this hearing, all of us in the west can talk about water all day every day of the year, regardless of a drought. we see flooding today, two years ago in 2013 we saw massive and catastrophic flooding in colorado, interspersed with drought, in parts of the state as well. if you just look at the needs of
colorado. by 2050, the statewide water supply initiative gets estimated that just on municipal and industry uses needs a loan for water. by the year 2050, colorado will have to have an additional 100,000 acre water. if you look at what happens in colorado, without that water, over the next several decades, we lose between 500 and 700,000 acres of farmland through urbanization, urban water transfers, if we don't have the water that we need. we have done a good job of conservation in colorado. can we do better? we can, we should look at ways
to develop critical conservation approaches. in colorado, we have resulted through hard work of many people, results in 18% water savings per capita in colorado since the year 2000. water efficiency has resulted in an 18% per capita water conservation rate. if we hit the median level, every water storage project that we need. we're looking at a $15 billion infrastructure cost in colorado alone, simply to develop 800,000 acre feet of additional water that we need by 2050. that's a significant cost. if we build every water project in colorado that is under consideration that is under construction. i guess the acronym is ipp for it, if we build all the plans that we have, we still are somewhere between 500,000 to a million -- excuse me, somewhere
between 180,000 feet short of the water that we need by 2015. regardless of the issue of drought, which is severe and catastrophic in parts of this nation the conversation we have to have on water in this country is real. $15 billion in colorado alone, to meet our needs by 2050. a couple questions i have to both of your reclamation, one of the concerns we hear, giving more flexibility. i'm concerned about that, and believe we need more flexibility and management ability at the local and state level. do you think additional flexibility at the local level, water management levels would be preferable to more control over the water projects? >> senator garner, members of the committee.
the western governors have adopted policy resolution 2014-03 water resource in the west. with the chairman's permission i'd like to submit that for the record, it's very emphatic about the governor's -- about the state privacy over water management authority. >> and thank you, one of the challenges we also see, it's taken a dozen years for chats field reservoir in colorado, to receive the approvals it needed to move forward in northern colorado, where the flooding is occurring. we have another water storage project that started in 2004, this project could store tens of thousands of acre feet of water. we still don't have the necessary permits for that project. is there something that we can do for a permit point of view to
increase our ability to store more water as we work on the needed conservation efforts? >> chair woman murkowski. quoting from that policy resolution, 2014-03. infrastructure planning and permitting guidelines, rules and regulations, should be coordinated stream lined and flexible to allow for decision making in the design financing and construction of needed infrastructure, account for regional differences, balance economic and environmental considerations and minimize the cost of compliance. >> i think there's three legs of the stool to a sound water policy. number one is increased water storage as we see we need. number two is it critical conservation. what we can do to become more water efficient. number three is
with the department of interjor. we spoke about the something that was authorized under president kennedy. has received funding over the past several years, but thousand, now, we've hit the point where we need to move forward or figure out a different way, but the funding issues need to be revolvesolved so we can build this pipeline. what specific actions do the bureau what specific actions did the bureau like to sea at the local or state level in order for the conduit to move forward? a different and better model.
our goal has been to look at the actions that needed to be done. figure out the best alternative in moving forward and laying out that project and get it to a full design phase and that's what we've been working is to invest the money necessary to get to the design phase fully understand the costs. now, we're close to that transition point and what we've talked about over the last year is is there a way to use state money. they've got a low interest rain from the state. is that enough to get the project started? and give us time to look at other federal programs that might be used to contribute to the cost of the construction and i say that just because in as much as the administration has supported a bure row and congress has added to it knowing
the importance of water resource issues, we're just in a mind overall particularly with respect to these rural water supply projects. we are $1.5 billion behind and i think we're looking at 300 to 400 million more. we need to look at cobbling together a bunch of sources. >> and if there are particular actions you'd like to see in arkansas valley, i hope you will contact my office. >> thank you. we've heard a lot from western senators today, how critical water is. i know last night when chatting with my wife, my wife and kids live in montana. we checked out the four kids, three dogs, then the rain gauge. the west is having drought. it's a serious issue and though the drought conditions we're
seeing in montana are not as severe as those in california we still face below average snow packs. we've seen so much welcome rainstorms over the past few week, but they're not going repras the summer snow pack run off which norm occur, the head water, literally, the three forks of the missouri. the flat head basin showing we're at 55% of normal levels. these are in northwest montana, is reporting 16% of normal level. the concern now as we're looking at june 2nd is what does this mean for fire season. montana has over 7 million federal acres that are at high or very high risk of wildfire. most of which managed by the forest service. that's approximately one in four federally controlled acres in montana.
nearly two million of these forested acres are most in need of some kind of treatment because they're near populated communities or critical watersheds. unfortunately, i was just informed by the forest service that the hazardous fuels treatments only conducted on about 52,000 acres in the last fiscal year. and so, this current pace of treatment is unacceptable and nourk we're staring at a significant fire season coming just around the corner. our communities our watersheds, all of these critical treasures are at real risk because of wildfire. your testimony mentions how a number of national forests in arizona were created primarily for the focus of watershed protection. i understand the city of phoenix set aside $200,000 for active forest management. the national forest foundation project on arizona national
forests and the purpose as i understand it, is to protect the watersheds supplying water to our communities. could you expand on the risk to watersheds that unhealthy forests pose? >> they were less than 50 trees per acre. today, there's over 1,000. so, they're choked, fire risk is high. in the 1980s, we burned about 85,000 acres in those forests. in the 1990s, about 230,000, over 2 million acres have burned in the forests. we are seekinging ways to thin the forests and honestly, it's going more slowly than we would have liked to go. some of that is some of the environmental restrictions underneath the endangered species act and we will look
maybe again as we talk about streamlining and some of those issues for california. for transferring to arizona to help with our forests issues and hello. >> what impact on a watershed does a wildfire pose? >> so, after the wildfire, the erosion and run off, you get from soil going to the streams, creates huge water quality problems. it greatly increases the streams and race raises treatment costs for those cities who take that water out of those streams further downstream. that's one of the issues. it also chokes our reservoirs with silt and those reservoirs will fill up and lose more capacity so they'll lose storage, so that's one of the other big issues the forest fires create. >> in your testimony you mentioned a resolution which the
western governor's association had adopted a wildlife fire management. this draws resolution to the use of active force in management as a means to prevent wildfire and promote healthy landscapes. how are healthy forests linked to helping to maintain clean, reliable water for our communities? >> chairman merkowski, once you understand these issue we certainly recognize that wildfires and water supply and forest management all impact one another. i think we would certainly subscribe to the comments of previous. >> all right. thank you. last lyly, for deputy conner. your testimony talks about how
increased wild and fire risk threatens public health and variety of resources includinging habitat for threatened and endangered species. what's the department doing to mitigate that risk? >> a couple of areas to get to the point you were talking about, you know, there is not sufficient funding we would like to see across the agencies with respect to hazardous fuel reduction. we've tried to expand the interest in the partners that's able to deal with that and bureau couple of years ago, we tarted an enhanced partnership. we had a couple of situations in colorado. denver water and colorado springs utility faced massive maintenance costs and cleaned up post fire. so, we've formed partnerships. one in montana, hungry horse, with local entities.
we would add money and critical water infrastructure. so it's starting to take off. city of pace is up from last year in arizona. we're starting to get a lot of traction with interested entities, so we're expanding upon the resources to bring to this issue. also, we have a fire proposal in the president's budget for the last -- we can increase the cap the cap available emergency funds for fire suppression so they don't have to take it oaff other counts. through that we would like to have resilient landscaping activities where we can marry up field reduction with improvements, species issues. the health of the overall forest. that's the goal with that pro proposal proposal. >> we want to be filling the
reservoirs full of good, clean water and not silt as we look at one way here to mitigate the effects of drought. >> thanks. >> thank you senator. i want to continue on mr. conor, the relationship between water and some of our endangered species. when reclamation makes decisions on supply and delivery, is the legal contract between the bureau and water users equal to the federal government's stat torre responsibility to protect threatened or endangered species? is this views equally and whatever your answer is, i'm curious to know why. if you can just speak to that. >> it's not necessarily equally. chairman, it depends on the contractual language and they
contain a shortage clause and that depending on its language, the majority had been interpreted to say shortages to contracted amounts due to drought, regulatory requirements result in reclamation not delivering, not having to deliver that quality of water. there are some contracts where it's been found it's different and that has not been the case. >> let's just use a specific example. i was in central valueley in california and all the discussion there is about release to provide for the delta smelt. so in that situation, is that one where the where the statutory requirement to protect the smelt overrides the legal contract again with the bureau to for water for users? >> it is.
the statutory regulatory requirements has manifested in biological opinions are legal requirements they have to comply with. >> how then as we're trying to gatther the data to better understand whether who not we're making headway, whether it's with the delta smelt or others, with these environmental releases, how are we doing with our data collection i mentioned in my initial questioning the collaboration that is obviously key throughout all of our agencies, are we also collaborating when it comes then to the data collection that is is necessary for making these decisions? as we're talking about these environmental releases?
>> chairman, i recognize that there are differing views, having read all the testimony presented today. but i think we are doing a much better job of collaborating and applying this biological opinions. i can give you several examples. these biological opinions from the fishing wildlife services having to deal with delta smelt and species, are significant and how they affect the water supply. but they've received a great amount of independent scientific review, which isn't always the case. the two biological opinions between them, they were subject to four independent reviews prior and two reviews subsequent. the national academy upheld them as being fundamentally and conception yully sound in their application. having said that, they also
raised issues and several of the reasonable prudent alternatives saying they weren't as well grounded in science and needed to be looked at closer. we have engaged in a collaborative program with water users and have gradually made changes in how we apply those opinions. we've done a better job with the resources, particularly provided by the congress to install monitoring stations monitoring -- where the fish are. it's given us more flexibility to operate the pumps at hire levels. we have this year, made a change to the statement that applies for the delta smelt, which was critical because we were takinging smelt at the pumps in a manner that would get close to that. limitation limitation, which would have caused us to reconsult. we were convinced of the scientific soundness of that
data to increase the statement. overall, i would just say we're getting better we're making changes. you could certainly argue those should have been several years ago, but we are moving in the right direction. i think there is data out there that does demonstrate the benefit to the fishery from the application of these biological opinions. >> let many ask mr. oaksbury then. are we getting better? do we have this collaboration are we gaining the data that's going to be helpful? >> chairman ranking member, data needs emerges one of the key things of the drought from workshop discussions over our initiatives first year and as we move into years two and three, i think that focus on data and data gaps will sharpen. one of the things we heard is yeah there's a lot of data but
it's poorly coordinated, analyzed and interpreted so as we look forward to the coming years of the drought forum, we're going to explore ways to ensure that the collection and sharing of crucial drought, flooding and extreme weather related data affects information are improved and sustained. >> i'm going to ask one more question then turn to my colleague and we'll wrap up here. a lot of head way i think with the technologies that allow us to conserve more water as was mentioned by senator king. whether it's low flow toilets or low drip irrigation. it's incredibly impressive. also very ekxpensive but just goes to the point that these investments will be made for the long-term, recognizing that we're going to be dealing with
these water and drought issues for some time. but considerable technologies that are there. i mentioned the energy water nexus in my comments. it's my understanding that in the energy producer's world, there has been some pretty considerable technology that allows our energy producers particularly in oklahoma to be managing water more efficiently in ways that i think catch a lot of people by surprise that they are actually putting more water back into this system than they are using. is this something that your group the drought forum, mr. ogsbur, is looking to in determines of best practices
throughout there? >> chairwoman, absolutely and in fact our drought forum workshop series began in norman, oklahoma where it went very deep on drought's impacts on energy, we learn add great deal about opportunities that energy sources have to adjust cooling water consumption ocho the advance computer controls we've learned a great deal about the opportunities that utility theies have to use water and so by all means. >> thank you. senator cantwell. >> i think this is about the new normal we're seeing in drought conditions and we need new solutions so i thank mr. conner for talking about some solutions
but my colleague got you to be specific on legislation. i wanted your specificity on whether the next parts of the basin project things like the reservoir and building fish ladders, do you see those as the logical next step? >> i do senator cantwell. i see those as the next steps for moving forward, the comprehensive plan that addresses environmental issues and trust issues represent as good strategy that seems to have been moving forward with broad, you know wouldn't say consensus but broad as sup poor you can get from a number of different constituencies constituencies. i think to be blunt, there is always going to be a question of what is the appropriate federal rule in the strategy versus state and local entities and i
know the state has really stepped up to fund a significant amount of program as soon as it got the plan was finalized and we are making increate mental invest ms. >> i know you're not an expert on agricultureal issues but isn't the federal government going to see this one way or another? when you have emergency drought issues related to agriculture, people will come here and talk about crop loss and cost damage and ask the federal government to help. isn't this about measuring the level of invest mment we can make now, i don't remember who talked about the improvements that saved 35,000 acre feet of water that could then be used for something else. that was the beginning of this process, right? isn't this about investing now so that we don't come back to the federal government later with disasters and ask for help? >> senator cantwell, i think that's a good point we made
that point in other basins and advocated for significant resources for funding basins. there are, you know, assistance programs, drought relief programs that have continually gone and extent pended resources to the address the issues and there is an argument the up front investments do help to head off those kind of shortages, conflicts and the relief measures that are needed. >> so i think the thing i like best about the cooperation is that then farmers and ranchers and tribes and everybody comes together fisherman and agree on what they think is the best way to increase capacity at this point in time or the best way to relief you know, some of key issues in drought. so i think then they are coming to the federal government asking for us to try to be able to move
faster and to support these efforts that will give us more capabilities. i know it's not the department of interiors job to look over your shoulder and say the this other agency will become and ask for billions of dollars for relief but i guarantee that will happen in the agricultural communities. a little prevention up front to help with this i think would go a long way, you talked able seattle and not having a serious of problem because of storage of rainwater, could you elaborate on that? >> it was pretty clearerly on snow pact was not accumulating and the reservoir would let a lot of rain go because of capacity for the winter snow back as it's released and responsibilities for so
rainwater was adequate to get them through the season and i'm not sure the curves. in the state of washington on the agricultural side, there is concern and a tough sit warnings but they talk about next year because we're looking at california and don't have the year to year series of droughts yet and what that means for carry over in reservoirs. >> we're likely to see that. ms. cody, did you have something you wanted to add on about how we look at the cost investment issues now as i relates to helping this situation? you might turn your microphone on. >> sorry. i think you raised an interesting point and as some proposed in the past that such storage would be a way to offset some of the loss. i'm not agricultural expert on
that but we have people that are exerts in that that could help with that question and followup. >> what about some of these storage of invasion ideas that have been proposed by cooperation and local commune theties? should we support more of those at the federal level? >> crs cannot make recommendations or propose solutions we can outline the options. there are a lot of innovative options that we heard several of them today. i think it was john keys who sat at this table many years ago and sate water reuse is the last on tap river in the west. mike points out a lot of questions on what is the best option comes down to the fundamental question of what is the federal role in the water supply? does congress want to take that on? is it a federal taxpayer responsibility for these projects or is it the collaboration approach as we see with local governments?
that's a congress policy question for congress. >> but why wouldn't we follow that? we're not saying the department of inter yes m isn't involved. >> certainly, they are. >> i guess in this world of you know information and change where everything is flatter that that is one more example of where collaboration on the ground by people who don't usually agree about water agreeing about what the best next steps are and the department aiding with helping projects to move forward whether moving their authority or in finance is a better way to go than saying okay, we'll come back to the department of interior and look for a lot of bottom down i think this is the new normal we'll have. >> i see the point you're
making. >> there is a lot of collaboration going on. >> if those are the results that we can get like the 35,000 acre saving by doing small things let's so that they can help the come nine whose are making the decisions together, which again i would think probably alleviates some of the legal battles that we've had in the past when people don't agree. >> i think the president's climate action plan makes it clear there is an on going ted real rule that needs to be played with respect to these challenges that are upcoming so the question is recognizing the limitation of resources and we need to be as creative as possible and figure how to address that role because it is critical and this is the new
norm. >> i definitely think so when you talk about that i'm saying we're going to see this one way or another. this will come back to us if it's in the forum of thing a losses, which i can't, are production for washington state can't remember, 1.2, a huge economic i'mmpact. anyway, i think the witnesses, this is a good discussion and i do think that we should continue to get information from our national laboratories that are doing, you know, work on what is the long-term impact or the next ten-year projection. that might give us indication of what we ought to be looking at as far as helping to alleviate some of the problems at least in the next you know, short you know, time period but again, thank you for this hearing. >> thank you to the each of our
witnesses today thchl is clearly highlighting why it's important that we do a broader water bill initially the focus has been on california and very dire situation there, but i think it's clear that the focus with legislation moving forward needs to be western wide and so some of discussion that we've heard today i think will help us as we form late that. good discussion about the collaboration and the need for flexibility, the need for some streamlining. we've got permitting issues obviously, storage is a key consideration, the technologies that the will allow us to have greater efficiencies greater conservation, these are all going to be critical but i clearly agree with you senator cantwell, as we're dealing with
the here and the now, when it comes to water and water access, we need to be looking long-term. if senator king was trying to figure out, give some give some historical context here, is this a thousand-year event but whether or not we have defined that, i think going forward, we need to be trying to be as long-term in our view and our vision on the this as possible because if this is the new normal going forward then we've got a lot of work to be doing and we're willing to take up that work here in the committee, again, working with many of you we appreciate the perspectives you have lend and with that we stand adjourned.
>> thank you. >> tuesday, a senate homeland committee meeting, a recent investigation into the agency shows a failure to identify over 70 tsa workers with links to terrorism. in addition, the acting tsa administrator was removed after several agents couldn't find fake explosives and weapons during internal tests. that hearing gets underway at 10:30 a.m. eastern and live, later, the senate foreign relations committee considers bills for 2016 state department operations and condemning war crimes in syria. members will also vote on several ambassador nominations. see the markup session at 2:30.
color photos of every senator and house member plus bio and contact information and twitter handles. also district maps, a fold out map of capitol hill and a look at congressional comities, the president's cabinet agencies and state governors. order your copy today it's $13.95 plus shipping and handling through the c-span online store at c-span.org. this summer book tv will cover book festivals from around the country and top non-fiction authors and books. watch for the annual roosevelt reading festival from the franklin d. roosevelt library. in the middle of july we're live at the nation's flag ship african american literarily event with author interviews and panel discussions and at the beginning of september, we're live from the nation's capital
for the national book festival celebrating its 15th year and that's a few of the events this summer on c-span 2's book tv. experts including an envier mental protection agency official talk about the waters of the u.s. or wotis rule. this is about 90 minutes. >> hello, everybody and welcome. >> yeah, they are all green. >> thegood afternoon everyone and welcome to the environmental law institute. i'm scott, the acting president of the institute and we're bringing you the discussion of
recently released clean water rule. environmental professionals speak in acronyms, the phrase at the core of the this rule waters of the united states is often referred to as wotus. many of us talk about it that way. the wotus rule was issued by the army corps of engineers and demarcates the federal jurisdiction for clean water act and this has a significant impact on the kinds of activities required to the obtain federal permits ranging from land development that might impact wetlands to discharges into streams and rivers. we are bringing you a panel of top experts the today to explain the role. help place the role in context, discuss any remaining questions and explore the likely future for the role and i'm pack. this is part of the environmental law to make law work for better economic, social and environmental outcomes, through our research education convenings and publications we make environmental progress real but examining u.s. law like we
are doing today and educating 2,000 judges in 25 countries or working with with partners to strengthen jordan's water management, liberia's timber management or implantation. our approach is strictly non-partisan and we believe by bringing all prospectives to the table, we can achieve better environmental results. the four professionals we bring you today are at the heart of the on going effort to clearly articulate the scope of federal jurisdiction over water protection. sit a tough issue having made three high profile trips and one we're orangeanxious to discuss. we'll ask ken and craig to provide an overview of the role and coal from industry and protectives will provide their thoughts and we'll leave 35 minutes for dialogue and discussion so please send in your questions and for those in the audience, use the microphone when ready to have a discussion. to start we have ken who is department thety assistant
administrator in the office of water in the u.s. water and environmental agency. prior to joining epa ken held several senior positions on the staffs of the house committee and infrastructure and environment and public works. thanks for joining us. >> thank you, scott and thank you to all of you and my fellow panelist. >> congress created the clean water act as congress defined as the waters of the united states while the territorial seas is defined in the act waters of the united states is not. the clean water act has but what definition of waters protected by all programs including those from discharges from cities and industry under section 402 permitting for the discharge of field material under section 404 and oil and hazardous waste under section 311 among others. all of these programs further
the clean water acts to restore and maintain the chemical, physical and biological integrity of the nation's waters. congress left it to epa and the army to define the waters as united states. existing regulations defined waters of the united states as traditional waters interstate waters, all other waters that could affect interstate or foreign commerce, impoundments, transcribe transcribe day rors and more. the definition of waters of the united states three times between 1985 and 2006. in protection for 60% of the nation's streams and millions of acres of wet land haves been confusing and complex as a result of last two of those decisions. in 1985 the supreme court addressed the scope for the first time in a case which involved wetlands adjacent to traditional water. in a unanimous opinion, the
supreme course talked about the integrated nature of the echo system and importance of adjacent wetlands to the echo system. the court observed that protecting aquatic i can sew systems for water moves and cycles and it is essential that discharge of pollute-- then in twrouz2001 the supreme court held non-applicable waters on interstate ponds by might tory birds was not in and of itself a sufficient basis under the clean water act and the agency stopped doing so immediately following that. the court in 1985 also noted that it found that congress' concern for the protection of water quality in echo systems indicated the intent to regulate systems bound up with the waters
of the united states and that it was the significant nexus between the wetlands and waters that informed the leading in the previous river said case in 1985. while the swank decision in the 2005 case did not invalidate the agency's regulations, it emphasized some type of relationship was necessary for jurisdiction. it also introduced the concept of significant nexus. in 2006, the supreme court considered the scope of waters of the united states in the joint decisions which involved wetlands adjacent to non-applicable territories. while all members of the court agreed that the term waters of the united states encompasses waters including wetlands beyond those applicable in fact, the case yielded no majority opinion, the nine justices managed to author five accept
pretty -- acceptseparate opinions as covering relativity permanent flowing bodyies of water connected to traditional waters as well as wetlands with a continuous surface. the plurality noted the reference to relatively permanent did not quote necessarily exclude streams rivers or lakes that might dry up in extraordinary circumstances such as drought closed quote or again quoting seasonal rivers which contain continuous flow but no flow during dry months. justice kennedy in his concurring opinion concluded waters of the united states encomepasses wetlands that are or were reasonably so made and quoted swank in support of that position. he stated wetlands possess the requisitesecrets significant nexus
alone or in combination of similarly situated lands in the region affect the chemical, physically and biological integrity of covered waters justice kennedy's opinion notes such a relationship must be more than speculative or insubstantial and neither the plurality or kennedy opinion invalidated any of the regulatory provisions to finding waters of the united states is we have three court cases, one unanimously upheld the regulation and two that did not address it so why do we do a rule? so we did the rule because the confusion and uncertainty sell stemming from the last two support cases created a request for over the last ten years in the army core to under take a rule making to provide clarity on what waters are protected by the clean water act. and there was a lot of confusion, recall i mentioned that there were five opinions
from nine justices that were confused and did not agree. request came from both parties, both chambers, state and local agency officials industry, agriculture, resource ex traction environmental and conservation groups developers and builders scientists and the general public. secondly, one in three americans rely on seasonal or streams for their drinking water and they are not clearly protected today. and third, many states have limitations on their ability to fill the gap and protect waters no longer covered by the federal clean water act after swank and repanos. it was a study in 2013 that concluded about a little over 2/3rds of the states have laws that could restrict authority to regulate waters affecting streams, wet lands and other waters not protected by the clean water act and while some state restrictions are easier to overcome than others, the record has been the states are not
taking action. what does the rule do? the clean water rule protects streams and wet lands that are scientifically shown to have the greatest impact on down stream water quality and form the foundation of our nation's water resources. epa and army are ensuring that waters protected under the clean water act are more precisely defined and easier for business and industry to understand and consistent with the will you and the latest science. the clean water rule creates eight categories of jurisdiction l waters, subject to definitions and limits in the rule and two categories that is subject to a nexus analysis and then repeated, the clean water rule continues jurisdiction for traditionally traditionally navigating waters and impoundments. what did change? the clean water rule clearly
defines, remember the clean water act protects with thor ways and their non-transcribe tar physical feature of water in bed and banks and unordinary high the water mark, the rule provides protection for head waters that have features and side shows can have a significant connection to and effect on the down stream waters, rule provides sercertainty. rule protects waters that are next to rivers lakes and their transcribe tar transcribe tarries but for the first time, the rule sets boundaries on covering nearby waters that are physical and measurable. those are the six areas considered jurisdiction by rule. i want to emphasize today under
the current rule there is a case specific analysis based on determining whether there is an effect on interstate commerce and there when there is a significant connection between an upstream water and down stream water and whether there is an ability to have a significant effect from upstream to down stream. science shows that specific water features can function like a system and i'm pack the health of down stream waters, so the first waters subject to a significant nexus analysis are five regional waters that we identified in the rule. the prairie the to holes, carolina bays western pools in california and texas coastal prairie wetlands when they impact down strep waters in determining, the functions will be evaluated as a system. in their watershed but still be subject to the a significant nexus analysis. the second category of water subject ocho the a significant
nexus analysis those within the 100-year flood plane of a water, interstate water of territorial seas as well as waters with a significant nexus within 4,000 feet of the jurisdiction waters and fewer case specific analysis, the rule focuses on streams, not ditches or function like streams and can carry pollution down stream so a ditch no construct in a stream and flows only when it rains is in the covered. the new rule maintains the status quo for municipal ms 4s. we do not change how those waters are treated and encourage the coming use of green infrastructure. as i said, we reduced the number of case specific analysis required. today almost any water in
america could be put through a lengthy case specific analysis if it would not be subject to the clean water act. the rule significantly limits the use of case specific analysis by limiting the numberuated waters, rule maintains and expands ex exclusions from waste treatment systems and crop land but adds three types of ditches ground water, gullies reels and non-we land swells to the list as excluded and excludes constructed components from separate storm sewers and water erosion l features. finally, other constructed features such as stock ponds and cooling ponds and pertinences are excluded, the rule protects waters that have historically been covered by the clean water act. it does not address land use it protects water. i does not regulate ground water. shallow subsurface flows or tile drains or change the policies and regulations on irrigation or
water transfers. in the end we have a rule that is based on solid science. it aligns with the supreme court decisions. i is based on the experience and expertise of epa and army and strengthens clean water act for the benefit of the american people. thank you. >> thank you so much, ken, we really asppreciate it. next we'll hear from deputy general counsel and silver works and in this position craig provides legal advice to other secretary officials on matters involving army instillations, lands and facilities and environmental law, protection of wet lands and legal issues relating to the u.s. army core of engineers and regulatory programs. craig spent his career in the army legal service and he survived the river crossing to make i here today. >> i was saying on the train over here, one thing we probably
need as much as clean water is a reliable metro. anyway, first of all, let me thank scott and the entire team for arranging today's seminar and welcome everybody that's here both in person and on the phone this afternoon. the the today's seminar is particularly timely and essential. i say essential because it is so critical for everyone whether you're an opponent of the rule or supporter of the rule to have a solid understanding on what the rule does and doesn't do. i've been up, we were up on the hill earlier mid last woke, both on the senate side and house side and did this for both the preamble and did it for the 2008 guidance and it always alarms me of folks with a strong opinion
of the rule but don't really understand the rule and that's a sad state but the rule isn't very long. ken did an excellent analysis of running you through the major steps we've coordinated and i'm not going to repeat i, i'll keep my comments pretty tight. but let me be clear, on behalf of the army, we truly believe the that the this rule is good for the nation and timely and relevant and needed to restore and maintain the words are important one of the most vital resources and that's an abundance of clean water. in preparing for today's seminar, i came across and we talked abthis on friday, we put a rule nobody was supposed to quote law review articles but i came across a research paper not a law review article written by professor william mines.
in 2012, that was pretty timely and the article, which i commend anybody who has an interest in the clean water act and particularly timely for what we're here to talk about today, his article or paper was entitled history of the 1972 clean water act. how the act became the capstone on a decade of extraordinary environmental reform and he observes this is in 2012, he says that many kerr renl issue haves a familiar ring to them and i won't bore you with specifics but lists several of them in his paper and i will say almost each and every one of them has been on the forefront of our discussion here in 2013 '14 and '15 as we approach the rule and he notes collectly i
might add that these same themes were debated 40 years ago and are still relevant today and this is so because the need to protect our streams and rivers our wetlands and our lakes is just as important today as it was back in 1972. the other thing i found particularly interesting and not being a historian on the clean water act or an expert in the clean water act, i found that in 1972 and '87 amendment, there was significant political controversy associated with the cheap water act itself and 1987 amendment but the nation's desire for clean water overshadowed the other issues and the law was passed and then again in '87 the amendments were passed. the army is a proud partner of
the rule that we'll discuss this afternoon, a full and equal partner, the army participated at every stage every critical stage of this rules development. my client and colleague assistant secretary for civil works said this is a generational rule, it completes another chapter in the history of the clean the water act, and that, those words ring loud and clear and they are so truthful. you know, where the act is almost 40 years old and the current rules that are, this new rule once i goes into effect change over 30 years old. a long time has passed and as ken laid out for us a lot has happened in those 30 years the current rules were written before the science was known.
it's based in large measure on constitutional principles involving the lawful reach of the commerce clause and yet in many instances as ken, again, just eluded to we left unaltered many of the rules that are in the 1970 era regulations announced here on paymay 27th and i cannot emphasize the importance of understanding again what was changed and what was not changed when we went into the rule we had three fundamental goals in mind and i believe i think ken would agree with me that we have a accomplished the goals we set out to do in the rule making exercise, one was the rule was to make commonsense changes. this is not a fundamental swing
in rule making or the state of law in the clean water but it makes very important common sense changes that will benefit both the water resource as well as our economy as we said on the hill i would ask everybody to lay the 1970 verses of the rule on and look carefully at i and tell me at the end that you don't see greater clarity in the new set of rules. the one thing that the old set of rules failed to do was to provide the requisite clarity that the regulators the professionals out in the field and the mud and water each and every day have set of rules they can say with certainty that a water is or is not jurisdiction
l and thirdly, the rule in several important areas based off of those supreme court decisions that ken eluded to this rule establishes a requisite level of certainty that did not exist before and these are in the bright lines that we'll probably get into a the little more here shortly, the changes that were made were are and were science based consistent with the decisions in swank and probably equally as important and they are with responsive to the public and stake hold comments we received, it's widely known we received over 1.3 comments on the rule. many of them with particular views in point. we in proposing the announcing
the proposed rule and preamble we sought public comments. we went out and we actually got comments and again if you lay the proposed rule down alongside of the final rule, you cannot, it cannot go mistaken that that rule changed and changed fundamentally. the rule clearly defines for first time what is jurisdiction l and equally as important, what is the no jurisdiction l in section b of the rule. and then of course itch ming the rule are now defined with much greater clarity in section c of rule. in the preamble we put a
provision in the rule that we believe is both reasonable and responsible to help transition from the old rule to the new rule a any point in time the core has a substantial amount of requests and permits in the queue. they are in multiple stages of complete completeness, and so what we did in the rule was we established a grandfathering provision that we think will page formake for an efficient rule essentially it goes like this is the that as of the date the rule goes into the federal register, the core's district commanders can make a determination if a rule is deemed to be complete on that day, doesn't have to be made on that day but if the district
engineer looking on the date whenever that goes into the federal register that a file for a jd or applicant is complete then that rule will be allowed to be proceed and decided upon under the existing rule. not with standing the fakct i may come out after the date of rule unless the applicant wishes to come in under the new rule they can ask that the decision be heldfekt effective date. once the rule goes into effect any decisions thereafter except for the ones just deemed to be complete and process out, those new applications and decisions will be rendered under the new rule. so the core is going to officially imp m thelement the rules,
training is already taking place. we're anxious to get started with that scott, i will turn it over back over to you. >> thanks, craig. before we go over to dee dra anddra and john, can you explain briefly what the army's role is in the section and why the army is at table and why you were so involved? >> sure, the core implements one of the key sections in the clean water and that's the 404 section section, the ma the ter yell isterial is a poll lieu tablet -- polluting and why the core is involved going back to 18 99 and basically remove sunken
vessels and debris so traffic can get up and down the rivers. but the core implements section 404 of the clean water act. it's one of the provisions unlike the 402 program where you're talking about discharge. the 404 permit program is so critical and i'm sure deidra will talk about this because it interfaces with development of lands, lands that may be wet or we we lands on a particular property that someone wants to do something with and they need a core permit to either enter into those waters, fill those waters, dredge those waters, drain those waters of the like and that's a lot of those waters as we know are all over country and the core has great visibility on its 404 permit program, so. >> thank you, craig. some of you will hear us talk about jurisdiction
determinations and someone says i got this piece of property, do i need to get a permit for? >> correct, they come into the core seeking a jurisdiction determination of which there are two types, one sayis a preliminary and the other is approved jurisdiction and essentially if the you come in and it's none binding type of determination and essentially for the most part the applicant just says well let's assume it's jurisdiction, what will i need and a permit is authorized more or less on the assumption the land is jurisdiction. someone wants to buy a piece of property or invest ochon a piece of property one that they can perhaps challenge in court or otherwise would come in and seek approved jurisdiction and takes a significant amount of time in
preparing administrative record to prove jd has an appeal process and many of them often times end up in litigation. thank you. >> thank you, craig. i want to make sure we're on the same page. deidra duncan that rep acceptables major parties and her experience includes negotiating and obtaining permits for projects, counseling clients on administrative rule making and policy and regulatory clarifications and drafting federal and state legislation. prior to entering private practice, she served as general clean water acts section 404 regulatory program. the thanks for coming today. >> thank you, scott and thank you for inviting me to speak today. i think i am the only person on this panel who is actually been involved in obtaining jurisdiction determinations both
as a regulator when i was at the army and now in pry i have practice on behalf of regulated entities, from my perspective, this rule unfortunately, fails to provide the public the clarity it's been asking for. i fails to provide meaningful limits on federal jurisdiction and it will be incredibly difficult to implement this rule for regulators, especially the core of engineers and i'll explain why i'm saying these things. first, the rules transcribe tarrytar -- definition is unchanged and maybe broader. there really were no substantive changes made to the tributariry definition itself even though many common ters urge that the definition be narrowed or at a minimum clarified. the deaf nigtsfinition relies on high
water mark but for over 20 years, the public told agencies in comment after comment that using the ordinary high water mark standard is very problematic. instead, the agencies continue to use this term and in fact state that they can use evidence of historic conditions to document an ordinary high water mark. indeed, even justice kennedy in the decision emphasized that the ordinary that ary high water mark standard is problematic he stated the breath of the ordinary high water mark standard, which seems to leave wide room for regulation of drains ditches and streams remote from water and carrying only minor water volumes toward it precludes it's adoption. the agency's use of the problematic term makes almost every other part problem mat tick as other categoryies and
exclusions from jurisdiction are tied to to this broad standard. for example, many of the threshold distances which we've heard about for adjacent waters and case specific other waters are measured from the ordinary high water mark. and given the pervasiveness of ordinary high water marks on the landscape, it will become almost impossible to fall behind these distances more over, if a the water is outside, i can still be regulated as long as it's in within 4,000 feet of an ordinary high water mark. these limits are even less meaningful in light of the agency's position if any force of a feature is within the limits of the distance threshold, the entire feature is jurisdiction lal but erosion l
features are excluded but only if they lack a bed and bank and ordinary high water mark. so it's kind of circular and in practice going to be very difficult and not helpful. similarly, a ditches are excluded unless they were excavated in a transcribe tarry, in other words, unless you can prove there wasn't an ordinary high water mark there on a landscape that could have occur add long time ago. ultimately, what is the difference between a femeral ditch, stream, you guessed it. comes back to the ordinary high water mark and concerns with key exclusions. for example, exclusions for waste treatment systems, storm water systems, artificial ponds and water filled depressions are
all tied to having the feature created in dry land. you have to prove at the time of the feature's construction in 1910 it was created in dry land and importantly the agencies specifically state there is quote no agreed on definition of dry land. given this ambiguity, it fails to provide clear exclusions on site industrial waters and storm water systems the aim of the rule was to provide clarity and make jurisdiction l regulated public and regulators but all of rules vague and complicated definitionsal regulated public and regulators but all of rules vague and complicated definitions , it will be difficult for the public and local regulators to implement.
just to close by illustrating how complicated it will be i wanted to read an example given by the agencies, the agencies state that quote under category a 8 for example, the agencies would evaluate on a case specific basis whether a low centered tundra and the pattern ground bog in an area with a small flood plane and beyond the 1500 foot boundary and the traditional navigating water or territorial seas or within the 4,000 foot boundary or a we land in which normal farming or ranching activities occur as those terms were used in section 404 and theimplementing regulations had a significant nexus you tell me if that will make jurisdictional determination simpler? >> thank you.
appreciate you being here today. next we'll turn to john divine he's an attorney in the defense counsel. john leads a clean water solutions team where his work focuses on implementing defending and strengthening core the water act programs prior to joining, he was in the office of general counsel and prior to law school, he was an environmental protection specialist. john, thanks for coming over. >> thank you, scott and thank y'all for including me in today's session. in general, we at nrdc view the clean water rule as a major step forward and we're grateful to the obama administration and the people in the agencies like ken and craig who not only had to wade through a mountain of scientific and public input on the rule but also whether baseless claims of being power mad, burro cats bent on controlling the american economy.
i imagine most folks here would be able to predict my reaction to specific parts of rule given that my view is that the supreme court did not mandate anything close to a major entrenchment on the scope of the clean water act and give than our review of the evidence leads us to conclude that all sorts of water resources are important to the overall integrity of the aquatic system. we're supportive of the aspects of the rule that guarantee protections the that the science shows are critical, transcribe tarries and most nearby waters. we had hoped for more certain protection for other water bodies but the rule leaves many of those decisions to a later evalwigsuation of the watershed level of the i'm packs to down stream resources. we believe the analysis will lead to watt wither's protection but we think i will require our
significant engagement to be sure. on the other hand we were disappointed but those areas where the agencies excluded features category from the law. especially in those instances where the agencies experts science advisors urged them not to provide cat gore rickegory exceptions. we strong to protect so-called isolated waters where it showed they were significant as a category. as well as certain man made transcribe transcribe tributes but the final law exempts a number of those features out right. on balance, though we think the benefits of restoring guaranteed protections to the waters at the core of this roll is a major improve m. it assures protection for the kinds of streams that provide supply for the drinking water,
providers for one in three americans to see nothing of the wetlands that prevent flooding, support all manner of wildlife. so thank you for having me. >> thank you john, apriest yeah it very much we have a number of questions, i'll allow the panelist to ask questions and pose questions to each other. i'll get us started, if you in the audience have questions, let us know and we'll get a mic to you. there were comments abletranscribe tarries >> what did the science tell us of impacts on upstream waters and down stream waters and from a standpoint waters are connected but also know that the court has made it clear that the
clean water act is not apply to the a water simply because it's connected from upstream to down stream water and that you can find that connection. instead, what we wanted to focus on was where is it that that connection is significant such that there could be a significant effect on the down stream water from the pollution or destruction of upstream water? and we know that the science indicates the that those effects have to be measured but you have to be able to find an indication of sufficient flow for the water to get from the upstream area to the down stream area and that is why we use the concepts is of bed and banks and ordinary high water mark. we also understand the concept is something that has to have some regional veribility to i because sit a physical feature and not appear exactly the same everywhere in the country but we have a history of working in this area and will com to work
in this area. we actually think by adding physical characteristics that we've in fact made it more clear. we've taken some of guesswork out, we now know that while deidra raised the question of how do you tell if there is ordinary high water mark or bed and banks, we have for the first time put in a rule requirement that those things be present and we'll continue to work so the public and regulators have an understanding what is intended by using those features. we think that those are important come poenltponents over the existing rule. i also if i could very briefly comment on some of the exclusions that are in the rule obviously many of those are carried forward from premble
language so the agencies have practice. i would speculate that the regulated public has practice in how they work and some of them even like for example the waste treatment exclusion that was mentioned we carried forward unchanged, so if there are questions going forward as to what the new rule is going to mean, they are the exact same questions that have existed since the 1980s when it was first put in the rule. >> thank you. >> craig how do people who are facing this and needing to make their own determination the idea of the rule was to he people take a look and get a sense if they were included or excluded. does the core have documents to consult to understand what an ordinary high water mark looks like and guidance put out in the future helping to explain what this rule means or look at the 200-page long preamble of the rule? would folks do? >> thanks, scott. core has, the core regulators
have lots of tools available to them to include manual that they use. i don't, i don't think it's as hard to identify an ordinary high water mark as deidra would attest to. the industry knows again the one thing that in the definition i would point out that wasn't identified in deidra's comments not with standing you have an ordinariry high water mark with a bed bank and a physical indicator of a bed bank and ordinary high water mark that i has to be of a sufficient type that contributes flow to one of the waters that are navigateble these are things that are fairly
readily evident and ken says in certain types of parts of the country, they are different they are different i don't believe that they're that difficult. can core regulators are well prepared. these are experts people who are -- are experiencing these matters, they use all the tools that are available to them. and they do discuss that with the applicant. they go out, they do site visits. so i don't -- it's not that difficult to find an ordinary high water mark. >> i'd like to add something to that. the agency's existing definition, the one that is being changed just protects tributaries without elaboration. this provides further definition
as to what that involves. candidly, we had urged the agencies not to go. they're -- in the proposal for instance wetlandes and ponds that acts as tributaries that are the source of water for downstream streams could have been considered tributaries under the rule and protected as such. the agencies opted in the final rule not to do that because those futures typically don't have an ordinary high water mark. and so that is among the ways that -- that we had actually urged the rule to be stronger and was not, but a choice that the agencies decided was necessary to give greater clarity to the regulated public. >> how would you recommend that approach in lieu of for any comments on what you've heard? >> yeah. let me comment a bit and say that, you know to claim that the science supports the
ordinary high water mark, i think is a bit disingenious. because i don't believe the sab report, the epa report, the connectivity report examined the concept of ordinary high water mark at all. so you know, i'll leave that. too, i think that as craig said, it's not hard to find an ordinary high water mark. they're all over the place. they can be found almost anywhere. if water has pass at some point in time over the landscape in certain parts of the country they are pervasive. so i'm not saying it's hard to find them. i'm saying it's not a reliable indicator of sufficient flow. which is why the science should have looked at the concept of ordinary high water mark. and i think if the public comments the substantive public
comments for people actually, you know were thoughtful in what they were saying, if those had been reviewed carefully, which i assume they were, i think the agencies would have seen that a lot of people gave a lot of thought on the term ordinary high water mark being ordinarily problematic. so that's my perspective on ordinary high water mark. with respect to the exclusions remaining largely unchanged, like waste treatment, that may be the case. but the real problem is that the definitions have not remained unchanged. tributary now has a very broad definition, includes ditches, manmade conveyances and a very specific explicit way. and there's a new category of waters called adjacent waters and waters in a footnote are broadly defined. so that's why i think a lot of comments raised concerns about
these exclusions maybe not being as clear as they could or should be because you now have these broad other categories that weren't in the existing regulations before. so -- >> thank you, deidre. i saw a question in the audience. let's start. >> thank you. my name is owen mcdonough. i'm with the national association of home builders. i want to step away from tributary for a second and actually explore the eighth category of waters. these are those that are with any of the hundred year flood plain or within 4,000 feet of a one through five water provided they have a significant nexus. this would be judicial. so i want to go through a scenario here and explore the, quote, common since that craig said earlier was used to base
jurisdiction in the clean water act. so to really understand this, we have to understand two terms. significant nexus and we have to explore the science of the common sense behind the 4,000 feet. speaking of nexus i want to point out two examples of what could in and of themselves prove that a water has a significant nexus. this is in cfr language for the final rule. e. would be runoff storage and "f" would be contribution of flow. so if a water stores runoff, it could have -- it would have a significant nexus or if it contributes flow it would have a significant nexus. so their water can function as a source or a sipg. they can do one or the other. so effect itchly, the way i would read this is that if you contribute flow or if you store flow or water, you have a significant nexus. secondly, we need to explore this concept of within 4,000 feet of a one through five
water. and i'd like to point our attention to the e.p.a.'s own economic analysis for the final rule that says quote the agencies have determined that the vast majority of the nation's water features are located within 4,000 feet of a covered tributary traditionally navagable water or feet. we believe very few waters will be located outside 4,000 feet and within 100 year flood plains. so, in other words, it's nearly impossible to find a water, and this is in the agency's own language, that would not be subject to a significant nexus test. again, to have a significant nexus, you either have to store water or contribute water. wouldn't that be all waters? so my question is, is that the common sense in the science that's used to provide clarity earn this final rule sflp. >> craig do you want to start? >> well that was a lot there. let's start with the let's start
with the -- these are isolated waters we're talking about in aa. >> that's what i was generally referring to. >> so sxlauj explain to me again what the first part of your concern so that i can address it specifically. about storing and contributing flow. >> sure. can you name for me a water that either would not store runoff or contribute flow? >> first of all you can have both, but they still may not be -- they may not have a significant enough of a nexus due to their -- due to their -- their distance. i mean, they could be at the outer end of the hundred year flood plain. >> i would agree with that, but the significant nexus is defined -- a function of water
with a significant nexus is defined in the final rule as providing one of thoughts functions. it can be just one of the -- >> are you talking about in the eight or nine functions? >> yes. >> if i could, owen, thanks for allowing i think, for some clarification on this. as you correctly point out, we specifically listed functions under the significant nexus test. and that was in response to during the various public meetings that we held the agents held over 400 public meetings. i think you personally participated in more than one. but moore importantly, as craig said, we received in excess of a million comments. and in answer to your question, yes, they all were looked at. but the -- and considered. but i think the -- what we -- so what we heard was you've said
significant nexus in the proposal. we did a pretty good job of repeats what justice kennedy said in his conquering opinion. but people said that didn't provide enough meat on the bones, if you will. could you not look at other ways to better quantify what is considered to be a significant nexus? and what the agencies did was we heard a lot of -- can you give us -- can you take these qualitative concepts and turn them into quantitative concepts? and we looked to see whether there was a way to define significant nexus, for example, on contribution of flow should it be x amount of cubic feet per second, x number of times a year on what average, etcetera? so is there a way to do something that was measurable? is there a -- so we looked at that and determined that the science did not support that
that we could not come up with a series of quantitative ways to measure what was significant but thought that what we could do was be more transparent in the final rule about what were the functions that the agencies would consider in doing the significant nexus analysis. and so those are the functions that you see listed in the final rule. i believe that we've tried to make it very clear, and if we haven't, we will continue to be -- to make it more clear that those are functions that will be considered, but the single presence of a function does not necessarily make it judicial. as craig said, it has to have the ability to have a significant effect. you're probably correct, i'm -- you know, in terms of looking it contributes flow or holds flow. that kind of is the entire universe. that's the yes and the no. but i think we do know that different water features provide those functiones and their significance can depend very much on what it is. justice